Pitrau v Barrick Mining Services Pty Ltd
[2012] FMCA 186
•23 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PITRAU v BARRICK MINING SERVICES PTY LTD | [2012] FMCA 186 |
| INDUSTRIAL LAW – Unlawful termination application – application to amend to general protections court application – jurisdiction where unlawful termination application wrongly brought against national systems employer – jurisdiction where no certificate from Fair Work Australia in relation to general protections court application. |
| PRACTICE AND PROCEDURE – Application to amend – power to amend – jurisdiction. |
| WORDS AND PHRASES – “must” – “must not” – “must not make”. |
| Constitution, s.116 Fair Work Act 2009 (Cth), ss.13, 14, 351, 352, 365, 369, 371, 566, 568, 723, 725, 772, 773, 777, 779, Parts 3-1, 6-4 Fair Work Bill 2009 (Cth), Explanatory Memorandum Federal Court of Australia Act 1976 (Cth), ss.31A, 32AA(1) Federal Court Rules 1976 (Cth), O.13 r.2 Federal Magistrates Act 1999 (Cth), ss.3, 10, 14-16, 42 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 7.01(1) and (2), 7.03, 13.10(a), 45.06, Part 7 |
| Adelaide Company of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Attorney-General for the State of Victoria (at the relation of Black) & Ors v The Commonwealth of Australia & Ors (1981) 146 CLR 559 Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314 Baycorp Collection PDL (Australia) Pty Ltd v Osborne [2010] FMCA 719 Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5 Boumelhemv Commonwealth Bank of Australia [2008] FCA 1121 Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Limited & Ors [2010] 244 FLR 335; [2010] FMCA 932 Carantinos v Magafas [2008] FCA 1107 Cavar v Nursing Australia [2011] FMCA 929 CEPU v Telstra Corporation [2011] FMCA 307 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd [2011] FMCA 535 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Donnelly v Prentice (2003) 1 ABC(NS) 205; [2003] FMCA 50 Du v University of Ballarat [2011] FWAFB 5225 Fair Work Ombudsman v Maclean Bay Pty Ltd [2010] FCA 1378 Fair Work Ombudsman v Nerd Group Australia Pty Ltd (2010) 197 IR 431; [2010] FMCA 569 Freeman v Ambulance Victoria [2011] FCA 1141 Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 Hughes v Mainrange Corporation Pty Ltd (No. 2) (2009) 190 IR 351; [2009] FMCA 1044 Ilardo v Rail Corporation of New South Wales (t/as RailCorp) (2010) 197 IR 397; [2010] FWAFB 6473 Jones v Groovy Freighters Pty Ltd (2010) 198 IR 298; [2010] FMCA 673 Keynes v Rural Directions Pty Ltd and Others (No 2) (2009) 72 ACSR 264; [2009] FCA 567 Kosovich v Mancini (1982) 31 SASR 272 Lydiard Financial Services Pty Ltd v Moran [2006] FMCA 1341 Maher v Mulgowie Fresh Pty Ltd (2010) 197 IR 64; [2010] FCA 439 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586; [2005] FCAFC 41 Newman v East Yarra Friendly Society Pty Ltd Trading As My Chemist Pharmacy [2011] FCA 1262 Parisienne Basket Shoes Proprietary Limited & Ors v Whyte (1938) 59 CLR 369 Poole v Rod Baker & Co (2011) 207 IR 264; [2011] FMCA 357 Portuguese Cultural & Welfare Centre Inc v Australian Media and Communications Authority [2011] FMCA 144 Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461 Rentuza v Westside Auto Wholesale (2009) 236 FLR 231; [2009] FMCA 1022 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 SZGTE v Minister of Immigration and Cultural Affairs [2006] FCA 443 Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327; [2011] FMCA 28 Vijayakumar v Qantas Airways Limited (2009) 233 FLR 369; [2009] FMCA 736 Wills v Passeck [2011] FMCA 39 |
| The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973) |
| Applicant: | VANESSA PITRAU |
| Respondent: | BARRICK MINING SERVICES PTY LTD |
| File Number: | PEG 66 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 5 August 2011 |
| Date of Last Submission: | 19 August 2011 |
| Delivered at: | Perth |
| Delivered on: | 23 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Reid |
| Solicitors for the Applicant: | Allion Legal |
| Counsel for the Respondent: | Ms N Leedman |
| Solicitors for the Respondent: | Talbot Olivier |
ORDERS
That the respondent’s application for orders for summary dismissal filed 28 April 2011 be upheld.
That the applicant’s application in a case filed 4 July 2011 be dismissed.
That the application filed 23 March 2011 be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 66 of 2011
| VANESSA PITRAU |
Applicant
And
| BARRICK MINING SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Application
The applicant, Vanessa Pitrau,[1] has made an application in the Fair Work Division of this Court alleging unlawful termination of employment under the Fair Work Act 2009 (Cth).[2] The grounds of the claim of unlawful termination are temporary absence from work because of illness or injury.[3]
[1] “Ms Pitrau”.
[2] “FW Act”.
[3] Form 3 – Claim under the Fair Work Act 2009 alleging unlawful termination of employment, Part G.
Issues
Two issues arise in these proceedings:
a)first, by reason of the response filed by the respondent, Barrick Mining Services Pty Ltd,[4] whether the application ought to be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001 (Cth)[5] on the basis that Ms Pitrau has no reasonable prospect of success, essentially for want of jurisdiction; and
b)second, on an application in a case filed by Ms Pitrau, as to whether Ms Pitrau ought to be granted leave to lodge a Form 2 to supersede the Form 3 as lodged with the application, which would have the effect of amending the application from an unlawful termination application under s.772 of the FW Act to a general protections court application under s.365 of the FW Act.
[4] “Barrick”.
[5] “FMC Rules”.
The Certificate
A certificate under s.777 of the FW Act was issued to Ms Pitrau by Fair Work Australia on 9 March 2011, and relevantly states as follows:
An application pursuant to s.773 of the Fair Work Act 2009 (the Act) was made by Ms Vanessa Pitrau alleging she was dismissed by BARRICK MINING SERVICES PTY LTD T/AS BARRICK MINING SERVICES PTY LTD in contravention of s.772(1) of the Act.
Fair Work Australia conducted a conference to deal with the dispute on 28 February 2011.
Pursuant to s.777 of the Act, Fair Work Australia certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.[6]
Section 723 of the FW Act
[6] Certificate Under Section 777 of the FW Act, 9 March 2011 (“the Section 777 Certificate”).
Central to the issues in dispute is s.723 of the FW Act which provides as follows:
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.
In the Fair Work Bill 2009 (Cth) Explanatory Memorandum[7] the following was said concerning clause 723 – unlawful termination applications:
This clause prevents a person from making an unlawful termination application under Division 2 of Part 6-4 if they are able to make an application under the general protection provisions in Part 3-1 in relation to the same termination of employment. This is because the general protections and unlawful termination provisions cover the same grounds of when a termination is for a prohibited reason. The unlawful termination provisions are only intended to be an extension of these protections to person who are not covered by the general protections in relation to the termination. The additional coverage in unlawful termination arises because these provisions rely on the external affairs power, as they give effect, or further effect, to the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer (Geneva, 22 June 1982).
Summary dismissal
[7] “FW Bill Explanatory Memorandum”.
Legislation
Rule 13.10(a) of the FMC Rules provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or …
Submissions – principles re summary dismissal
Barrick submits that:
a)the principles for summary dismissal of an application pursuant to r.13.10(a) of the FMC Rules are as follows:
i)if there is a real issue of fact or law to be decided and the rights of the parties depend on it, the matter should go to hearing;[8]
ii)to dismiss summarily, a court must be satisfied that there is no reasonable prospect of success;[9]
iii)summary dismissal may be appropriate where the success of the proceedings is critically dependent on a proposition of law which would contradict a binding decision of the High Court, as a court could conclude that the application has no reasonable prospect of success;[10]
iv)where the applicant’s case depends on an arguable question of law, summary judgment may not be entered;[11]
v)summary judgment should only be exercised in the clearest of cases where there is a high chance of certainty that there is not a reasonable prospect of a case being prosecuted successfully;[12] and
vi)it would be an erroneous exercise of power to dismiss summarily where the matter “concerns issues which have not been raised before a court in relation to a statutory provision, the interpretation of which remains untested”.[13]
[8] CEPUv Telstra Corporation [2011] FMCA 307 at para.26 per F. Turner FM; Portuguese Cultural & Welfare Centre Inc v Australian Media and Communications Authority [2011] FMCA 144 at paras.7, 50 and 116 per Lucev FM (“Portuguese Cultural”).
[9] CEPU at para.26 per F. Turner FM; Portuguese Cultural at para.6 per Lucev FM.
[10] Spencer v Commonwealth (2010) 241 CLR 118 at 132 per French CJ and Gummow J; [2010] HCA 28 at paras.25-26 per French CJ and Gummow J (“Spencer”); CEPU at para.26 per F. Turner FM.
[11] Keynes v Rural Directions Pty Ltd and Others (No 2) (2009) 72 ACSR 264 at 273 per Besanko J; [2009] FCA 567 at para.47 per Besanko J (“Keynes (No. 2”); CEPU at para.26 per F. Turner FM.
[12] Fair Work Ombudsman v Maclean Bay Pty Ltd [2010] FCA 1378 at para.10 per Marshall J (“Maclean Bay”).
[13] Maclean Bay at para.11 per Marshall J; CEPU at para.26 per F. Turner FM.
Ms Pitrau submits that:
a)the principles in respect of summary dismissal include those set out in Portuguese Cultural, citing Dandaven v Harbeth Holdings Pty Ltd,[14] as follows:
[14] [2008] FCA 955 at para.6 per Gilmour J (“Dandaven”), as set out in Portuguese Cultural at para.7 per Lucev FM.
i)“the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings”;
ii)“in a case where evidence can give colour and content to allegations, and when questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading”,
iii)“if there is a real issue of fact or law to be decided, and the rights of the party depend upon it, it is obviously appropriate that the matter goes to trial”;
iv)“it ought not to be used to shut out proceedings where, on a proposition of law, there may be room for doubt” ; and
v)“in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.”
b)it follows that where there are real issues of fact and law to be decided which should go to hearing, injustice and significant prejudice would be caused if proceedings were summarily dismissed;
c)all reasonable inferences should be drawn in favour of the party opposing summary dismissal;
d)“where questions of law were raised in an application for summary dismissal, it is a matter for the judge hearing such an application to exercise his or her discretion as to whether those questions should be decided summarily”;[15] and
e)the discretion to summarily dismiss should:
“only be exercised in the clearest of cases, where there is a high degree of certainty that there are no reasonable prospects of a case being prosecuted successfully.”[16]
[15] Maclean Bay at para.10 per Marshall J.
[16] Maclean Bay at para.10 per Marshall J.
Although slightly differently expressed by each of the parties, the general principles with respect to summary dismissal are not in dispute for the purposes of this hearing.
No reasonable prospect of success
Barrick argues no reasonable prospect of success
Barrick submits that:
a)the operation of s.723 of the FW Act prohibits a person making an unlawful termination application where the person is entitled to make a general protections court application in relation to the conduct;
b)Ms Pitrau was a national system employee as defined in s.13 of the FW Act, and Barrick was a national system employer as defined in s.14 of the FW Act;
c)it was held in Maher v Mulgowie Fresh Pty Ltd[17] that:
“Section 723 is clear and unambiguous on its terms. Mr Maher, being a national systems employee entitled to the benefit of the general protection provisions in Pt 3-1, was required to commence his application pursuant to that Part. He was not permitted to commence an action pursuant to section 772... Mr Maher’s application in its current form is, indeed, hopeless and bound to fail...”;[18]
d)Ms Pitrau’s application for relief pursuant to s.772 of the FW Act does not have any reasonable prospect of success, as it is a claim prevented by the operation of s.723 of the FW Act; and
e)the law on the effect of s.723 was well settled prior to the commencement of the application in this Court, or the commencement of proceedings in FWA.
[17] (2010) 197 IR 64; [2010] FCA 439 (“Mulgowie Fresh”).
[18] Mulgowie Fresh IR at 68 per Collier J; FCA at paras.19-20 per Collier J.
Barrick therefore submits the application should be summarily dismissed.
Ms Pitrau argues for leave to amend
Ms Pitrau submits that:
a)notwithstanding the operation of s.723 of the FW Act, and that in this instance Ms Pitrau made an application under Part 6-4 of the FW Act, the Court’s ability to order a summary dismissal of the application is not automatically enlivened;
b)the Court must be alert to the possibility that, in addition to the determination of a question of law depending on a “triable issue of fact”, that:
“there may be other reasons why, in the particular circumstances of the case, the court will not decide an arguable question of law on an application for summary judgment.”;[19]
[19] Keynes (No.2) ASCR at 273 per Besanko J; FCA at para.47 per Besanko J.
c)in Mulgowie Fresh there was an application for summary dismissal of Mr Maher’s application under s.31A of the Federal Court of Australia Act 1976 (Cth),[20] by reason of the operation of s.723 of the FW Act. The Federal Court noted that whilst Mr Maher’s application in its current form was:
[20] “FC Act”.
“hopeless and bound to fail, that is not the end of the matter.”;[21]
[21] Mulgowie Fresh IR at 68 per Collier J; FCA at para.20 per Collier J.
d)at the hearing of the summary dismissal application in Mulgowie Fresh, Mr Maher sought an order that he be granted leave under O.13 r.2 of the Federal Court Rules 1976 (Cth)[22] to amend his application to allege a contravention of the general protections provisions of the FW Act. Under O.13 r.2 of the FC Rules, the Federal Court noted that, at any stage of any proceeding, it could:
[22] “FC Rules 1976”.
“order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding.”;[23]
[23] FC Rules 1976, O.13 r.2(1).
e)importantly, the Federal Court noted that an:
“amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment.”;[24]
[24] FC Rules 1976, O.13 r.2(7)(a).
f)similarly, r.7.01 of the FMC Rules allows the Court, at any stage of proceedings, to make an order to:
“allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.”;[25]
[25] FMC Rules, r.7.01.
and provides that the Court:
“may give leave to make an amendment even if the effect is to include a new cause of action if the Court considers it appropriate and the new cause of action arises out of the same, or substantially the same, facts as a cause of action for which relief has already been claimed in the proceeding by the party seeking leave to amend.”;[26]
[26] Applicant’s Outline of Contentions of Fact and Law, para.14.
g)in State of Queensland v JL Holdings Pty Ltd[27] some relevant judicial considerations for discretion to amend, were set out:
[27] (1997) 189 CLR 146 (“JL Holdings”).
“that this is the only way in which the true issues and real merits, factual and legal, can be litigated … that the proposed amendment is of considerable importance to the rights of a party … that any fault is that of the party’s legal representatives; that the oversight was wholly accidental; that it was simply the product of unavoidable human error … and that the hearing date is sufficiently in the future to permit a party to meet the amendment …”;[28]
[28] JL Holdings at 169-170 per Kirby J.
h)in Mulgowie Fresh, the Federal Court granted Mr Maher leave to amend his application in the terms which Mr Maher had sought, the reasons including the following factors, which Ms Pitrau says are also relevant in these proceedings:
i)the application to amend the application came very early in the litigation;
ii)there were no case management issues, which may persuade the Court to refuse the application for leave to amend;[29]
[29] Citing Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
iii)order 13 r.2(7) of the FC Rules conferred sufficient power to do so;
iv)no prejudice had been demonstrated;
v)the original error by Mr Maher was not drawn to his attention by FWA which issued a certificate pursuant to s.777 of the FW Act;
vi)Mr Maher was out of time to commence a fresh application before FWA, so he would have been significantly prejudiced if he was refused leave to amend the application; and
vii)the objects of the relevant legislation are for fairness for working Australians and prevention of discrimination, and in the absence of prejudice to Mulgowie Fresh Pty Ltd, it was inconsistent with the legislative objects of fairness in the workplace to refuse an employee an opportunity to pursue a grievance in the Federal Court simply because there was an error in the formulation of the complaint;
i)Ms Pitrau submits that all of the above factors apply in this matter, and draws the Court’s particular attention to the fact that Ms Pitrau would be significantly prejudiced if the Court could not order that leave be granted to amend her substantive application by reason that she would then be well outside the 60 day timeframe in which to initiate a new application under the FW Act;
j)Mulgowie Fresh cannot be distinguished from the current proceedings, in that it has not been overruled, and is in fact cited frequently by subsequent authorities;
k)to date, the interpretation of s.723 of the FW Act has not been the subject of significant judicial deconstruction, so, as a proposition of law, there “may be room for doubt” about its application;[30]
l)Ms Pitrau’s application seeking leave to make the amendment was lodged in the Court, and served on Barrick before the hearing date of Barrick’s application for summary dismissal;
m)the judgments in Transport Workers Union v School Bus Contractors Pty Ltd,[31] Rentuza v Westside Auto Wholesale,[32] Hughes v Mainrange Corporation Pty Ltd (No. 2)[33] and Jones v Groovy Freighters Pty Ltd[34] can be distinguished;
n)the decision to amend in Mulgowie Fresh cannot be further distinguished by issues of jurisdiction, as those jurisdictional matters were generally considered in that authority; and
o)as in Mulgowie Fresh, the defect in the application is one that the Court can cure, and there is no authority which states otherwise.
[30] See Portuguese Cultural at para.7 per Lucev FM, quoting Dandaven at para.6(g) per Gilmour J.
[31] (2011) 201 IR 327; [2011] FMCA 28 (“School Bus Contractors”).
[32] (2009) 236 FLR 231; [2009] FMCA 1022 (“Rentuza”).
[33] (2009) 190 IR 351; [2009] FMCA 1044 (“Mainrange Corporation (No. 2)”)
[34] (2010) 198 IR 298; [2010] FMCA 673 (“Groovy Freighters”).
Ms Pitrau’s further arguments for leave to amend
In further submissions pursuant to the Court’s order of 5 August 2011 in further support of the application to amend Ms Pitrau submitted that:
a)rule 7.01(1) of the FMC Rules confers on the Federal Magistrates Court the power to amend a document, with the exception of an affidavit, at any stage of a proceeding, “in the way and on the conditions the Court or the Registrar thinks fit”;
b)rule 7.01(2) allows, subject to r.7.03, an amendment “even if the effect would be to include a cause of action arising after the proceeding was started”;
c)rule 7.03 deals with amendments that may be may be sought after a limitation period has expired. Notably at r.7.03(4) it is stipulated that the Court may provide a party leave to make an amendment even if “the effect is to include a new cause of action” if the Court considers it appropriate and the new cause of action “arises out of the same, or substantially the same, facts as a cause of action for which relief has already been claimed in the proceeding by the party seeking leave to amend”;
d)on the face of these rules, the Court is able to exercise its discretion to allow the amendment sought by Ms Pitrau;
e)Fair Work Ombudsman v Nerd Group Australia Pty Ltd[35] provides commentary as to r.7.01(1), stating that the power given to the Court under r.7.01(1) has been described as one which is “extensive”[36] and a “general power”,[37] but most importantly, “one upon which there is ‘no qualification”;[38]
[35] (2010) 197 IR 431 at 436-437 per Lucev FM; [2010] FMCA 569 at para.16 (“Nerd Group”).
[36] SZGTE v Minister of Immigration and Cultural Affairs [2006] FCA 443 at para.33 per Graham J (“SZGTE”).
[37] Lydiard Financial Services Pty Ltd v Moran [2006] FMCA 1341 at para.43 per Riley FM.
[38] Vijayakumar v Qantas Airways Limited (2009) 233 FLR 369 at 375 per Scarlett FM; [2009] FMCA 736 at para.42 per Scarlett FM (“Vijayakumar”).
f)notwithstanding that the Court in Vijayakumar found that there was no qualification as to the Court’s power under r.7.01(1) of the FMC Rules, the Court in Nerd Group, citing Donnelly v Prentice,[39] noted that:
[39] (2003) 1 ABC(NS) 205; [2003] FMCA 50 (“Donnelly”).
“It is not however a power to be used to substitute an applicant for an existing applicant who lacked standing to bring the proceedings originally”;[40]
[40] Nerd Group IR at 437 per Lucev FM; FMCA at para.17 per Lucev FM.
g)Donnelly can be distinguished in that Ms Pitrau, had standing to bring the proceedings originally, as opposed to the applicant in Donnelly who lacked standing to bring the bankruptcy proceedings;
h)further, in Donnelly the applicant had “no intention to bring the proceedings in his own name and would be unwilling to bring the proceedings in his own name”.[41] Conversely, Ms Pitrau has been challenging her termination by Barrick since it occurred, making her application to FWA, and intending to bring proceedings in this Court should the FWA proceedings not be successful. In any event, in Donnelly, the Court in effect granted the relief, for whilst the Court struck out the application, it granted liberty to apply within 28 days for further relief in the terms of the relief sought in the application filed on 18 November 2002;[42]
[41] Donnelly ABC(NS) at 206-207 per Driver FM; FMCA at para.7 per Driver FM.
[42] Donnelly ABC(NS) at 207 per Driver FM: FMCA at para.9 per Driver FM.
i)in Nerd Group, the Court found that the Court must take into account the objects of s.3 of the Federal Magistrates Act 1999 (Cth),[43] and r.1.03 of the FMC Rules, and the Court’s mode of operation under s.42 of the FM Act, stipulating that the Court is intended to operate in a manner:
[43] “FM Act”.
“(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c) which resolves proceedings justly, efficiently and economically;
(d) which uses streamlined procedures; and
(e) that avoids undue delay, expense and technicality.”;[44]
[44] Nerd Group IR at 437-438 per Lucev FM; FMCA at para.20 per Lucev FM.
j)in Nerd Group, the Court granted the application in a case as it was satisfied that the proposed amendments:
i)were made in good faith;
ii)raised an arguable case;
iii)entailed no case management disruption;
iv)involved no injury to the amending party; and
v)were in the interests of justice;[45]
[45] Nerd Group IR at 439 per Lucev FM; FMCA at para.30 per Lucev FM.
k)in this matter it is clear that all of those factors are satisfied;
l)as the plethora of case authorities with respect to assessing whether there is any prejudice indicate, there is generally no prejudice to a respondent where an amendment is sought to an application where notice was given very shortly after termination that redress would be sought for alleged unlawful termination;
m)the “dispute” in this matter, whether detailed in s.773 or s.352 of FW Act:
“are one and the same dispute and not one which is simply a developing area of complaint or concern, following through from the negotiation process” [46]
and
“the assistance required from Fair Work Australia in relation to the conciliation process, relates to as full as possible disclosure of the issues of the dispute and enunciation of the basis upon which an applicant seeks to bring a claim.”;[47]
n)taking into account Nerd Group, and related authorities, it is clear that the jurisdiction of the Court in making the amendment sought by Ms Pitrau has not been displaced, and the Court has the discretion to make such an amendment, and there is no legislative or case authority, or parliamentary comment, which provides otherwise.[48]
[46] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd [2011] FMCA 535 at para.34 per Coker FM (“Active Tree Services”).
[47] Active Tree Services at para.35 per Coker FM.
[48] Section 568 of the FW Act provides that nothing in the FW Act limits the Court’s powers under ss.14-16 (inclusive) of the FM Act.
Barrick’s response to the application for leave to amend
Barrick submits that the Court has power to grant leave to amend under to Part 7 of the FMC Rules, however, that leave to amend is not available in this matter as:
a)the jurisdiction of the Court has only been invoked with respect to the claim under s.772 of the FW Act, through the Section 777 Certificate;[49]
b)the jurisdiction of the Court has not been invoked, and cannot be invoked with respect to a Part 3-1 application, as there is no certificate under s.369 of the FW Act,[50] as required by s.371 of the FW Act and r.45.06 of the FMC Rules; and
c)Ms Pitrau’s application does not include an application for an interim injunction.
[49] FW Act, s.779.
[50] “Section 369 Certificate”.
Barrick further submits that:
a)in School Bus Contractors Pty Ltd this Court stated:
“Section 371(1) of the FW Act provides that unless a general protections court application – which the Application is – includes an application for an interim injunction – which the Application does not – the general protections court application must not be made unless FWA has issued a certificate under section 369 of the FW Act in relation to the particular dispute. Therefore, the section 369 Certificate is an essential requirement in relation to a general protections court application under section 371 of the FW Act, and without it the Court does not have jurisdiction.”;[51]
[51] School Bus Contractors IR at 330 per Lucev FM; FMCA at para.4 per Lucev FM. The decisions of this Court in Rentuza and Mainrange Corporation (No. 2), which relate to a Section 777 Certificate, were also cited in support of this proposition.
b)similarly, in Jones v Groovy Freighters Pty Ltd,[52] this Court recognised that:
[52] (2010) 198 IR 298; [2010] FMCA 673 (“Jones”).
“...the material document enlivening the Court’s jurisdiction is the certificate under section 369.”;[53]
[53] Jones IR at 307 per Burnett FM; FMCA at para.57 per Burnett FM.
c)in this matter FWA issued the Section 777 Certificate on an application made under s.773 of the FW Act alleging a contravention of s.772(1) of the FW Act, and the Court’s jurisdiction in this matter can therefore only be enlivened in respect of the s.773 application for the alleged contravention of s.772(1);
d)in Mulgowie Fresh, the Court granted the applicant leave to amend an unlawful dismissal application, but no issue of jurisdiction was raised or considered in the decision;
e)the decision to amend in Mulgowie Fresh is further distinguishable on the following bases:
i)the applicant in this matter is not self-represented, and has had legal representation throughout proceedings, including the initial application to FWA;
ii)in Mulgowie Fresh it was the applicant’s representative who identified the error upon receiving instructions, and who sought leave to amend at the earliest opportunity; and
iii)the decision in Mulgowie Fresh was the first decision of either the Federal Court, or the Federal Magistrates Court, in relation to the application and effect of s.723 of the FW Act. There have now been a number of decisions dealing both with s.723 of the FW Act, and the issue of jurisdiction; and
f)the defect in the application is not one that the Court can cure. The FW Act is clear that FWA must issue a Section 369 Certificate. Barrick submits there is no order the Court can make, or should make, which would have the effect of the Court granting a Section 369 Certificate, or amending the Section 777 Certificate so as to make it a Section 369 Certificate.
Barrick’s further response to Ms Pitrau’s application for leave to amend
Barrick further argues that Ms Pitrau cannot amend the application as the Court is without jurisdiction, in any event.
Barrick submits as follows:
a)in Nerd Group the Court stated:
“The power under r 7.01(1) of the FMC Rules is a power capable of exercise at any stage of proceedings, although earlier is better than later. It is not however a power to be used to substitute an applicant for an existing applicant who lacked standing to bring the proceedings originally.”;[54]
[54] Nerd Group IR at 436-437 per Lucev FM; FMCA at para.17 per Lucev FM.
b)in Nerd Group, it is clear that the power to amend under r.7.01 of the FMC Rules is “extensive”, a “general power”, “one upon which there is no qualification”, and is “clearly a discretionary power”, and the principles for the exercise of discretion are set out in Nerd Group;[55]
[55] Nerd Group IR at 437-438 per Lucev FM; FMCA at paras.19-20 per Lucev FM.
c)the issues here are whether r.7.01 of the FMC Rules operates in a manner that allows a new cause of action to be incorporated by amendment where there are currently no valid proceedings on foot, and whether leave to amend should be granted where the amendment would be futile for want of jurisdiction to hear the amended claim;
d)Ms Pitrau, by seeking leave to amend the application in the manner sought, impliedly accepted that Barrick’s position in respect of the current application is correct;
e)while Ms Pitrau has sought leave to amend the application, Barrick submits that:
i)as the proceeding currently on foot is a nullity by virtue of section 723 of the FW Act, the Court does not have jurisdiction to exercise the power to amend; and
ii)even if the Court grants leave to amend, any amendment would be futile as the jurisdictional prerequisite required for the Court to hear the amended claim cannot be satisfied;
f)it is clear from the terms of r.7.01(1) of the FMC Rules that the power to amend can only be exercised “in a proceeding”. Barrick submits that this must be interpreted as referring to a valid proceeding, in which the Court has jurisdiction. Accordingly, unless the proceeding has been validly commenced, and jurisdiction properly invoked, the Court cannot exercise the powers provided by the FMC Rules, including r.7.01;
g)in Baycorp Collection PDL (Australia) Pty Ltd v Osborne[56] (a bankruptcy matter), the Court was asked to amend a creditor’s petition to incorporate a new cause of action, where the original application was a nullity as a result of procedural difficulties constituted by errors and omissions;
[56] [2010] FMCA 719 (“Baycorp”).
h)in refusing leave in Baycorp, the Court confirmed that while the Court does have power to amend initiating applications, or any document in a proceeding, this is premised upon there being a valid proceeding on foot;[57]
[57] Baycorp at paras.27-28 per Burnett FM.
i)in Baycorp the Court said that:
“the initiating application in this instance is a nullity for the reasons … earlier outlined. The question is really whether a new cause of action arising after the initiating application can be incorporated by amendment into a barren proceeding in the manner contemplated by the rules.”;[58]
[58] Baycorp at para.29 per Burnett FM.
j)in Baycorp this Court concluded that:
“there must be an efficacious proceeding in existence at the time when the application is made for an amendment of the creditor’s petition. If there was no efficacious proceeding on foot then the purported amendment cannot enliven the proceeding.”;[59]
[59] Baycorp at para.35 per Burnett FM.
k)in Donnelly, the Court dealt with an application made under r.7.01 of the FMC Rules to amend the name of the applicant in circumstances where:
i)the name of the applicant, Donnelly, had been inserted by mistake; and
ii)Donnelly, the named applicant, did not have standing to commence the proceedings;
l)in Donnelly, the Court stated that there were two issues relevant to the determination of whether leave to amend should be granted:
“One is what the interests of justice properly require, and the second is whether the rules of court are properly available to support the action sought by the notice of motion... Where proceedings are properly instituted the Court should, in the ordinary course, not adopt too technical a view so as to frustrate the resolution of the issue sought to be resolved.”[60]
and:
“However, there is force in the submission put by Mr Walsh that such rules are not properly available in circumstances where the proceedings are instituted by a person who lacks standing to bring them. I would be concerned at the use of Part 7 of the Federal Magistrates Court Rules in these circumstances where it seems to me highly likely that the present applicant lacks standing to bring the proceedings. In the circumstances it is likely that the proceedings are a nullity.”;[61]
m)the conclusion reached in Donnelly, was that the Court was unable to exercise the power to amend as provided in r.7.01 of the FMC Rules where the proceedings were a nullity;
n)while jurisdiction was not in issue in Nerd Group, Barrick submits that it reflects the principles set out above: namely, that there must be a valid proceeding on foot for the Court to exercise its powers, and the power to amend cannot be used to enliven jurisdiction where it does not exist; and
o)the application is invalid, and there is no efficacious proceeding on foot which would enliven the jurisdiction of the Court and allow it to exercise the powers under the Rules, including the power to amend under r.7.01 of the FMC Rules.
[60] Donnelly ABC(NS) at 206 per Driver FM; FMCA at para.6 per Driver FM.
[61] Donnelly ABC(NS) at 206-207 per Driver FM; FMCA at para.7 per Driver FM.
With respect to the jurisdiction of the Court to hear any application amended as sought by Ms Pitrau, Barrick submits that:
a)section 10 of the FM Act describes the jurisdiction of the Court as the original jurisdiction as is vested in it by Parliament;
b)section 566 of the FW Act undoubtedly confers jurisdiction on the Court in relation to any civil matter arising under the FW Act;
c)it is also well accepted, that the Parliament is able to make the existence and exercise of jurisdiction conditional upon a jurisdictional prerequisite or fact that must be satisfied. As stated in Parisienne Basket Shoes Proprietary Limited & Ors v Whyte:[62]
[62] (1937) 59 CLR 369 (“Parisienne Basket Shoes”).
“It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend.”;[63]
d)section 371 of the FW Act, does make, and clearly intended to make, a Section 369 Certificate, issued by FWA, a jurisdictional prerequisite to a general protections court application, as was accepted in Poole v Rod Baker & Co[64] where it was stated:
“a jurisdictional prerequisite to the exercise of the Courts’ jurisdiction to deal with the (general protections) application ... is a s 369 certificate... Without a proper certificate the court does not have jurisdiction to deal with the general protections court application.”;[65]
e)it is not in dispute that the applicant in this matter does not have a Section 369 Certificate that is a jurisdictional prerequisite to the exercise of the Court’s jurisdiction in a general protections court application;
f)while Ms Pitrau has sought leave to amend her Form 3 application (unlawful termination) to a Form 2 application (general protections court application), the absence of a Section 369 Certificate renders any such amendment futile; and
g)even if the Court were minded to grant leave to amend, the amendment would be futile as the amended proceedings would not overcome the want of jurisdiction issue.
[63] Parisienne Basket Shoes at 391 per Dixon J.
[64] (2011) 207 IR 264; [2011] FMCA 357 (“Poole”).
[65] Poole IR at 270 per O’Sullivan FM; FMCA at paras.24-25 per O’Sullivan FM (citing Rentuza and Wills v Passeck [2011] FMCA 39 at paras.4-5 per Lucev FM (“Passeck”)).
With respect to the specific requirements of Part 7 of the FMC Rules, Barrick submits that:
a)Ms Pitrau has not identified which part of Part 7 of the FMC Rules is relied on in the request for leave to amend. However, in the Applicant’s Further Submissions dated 12 August 2011, rr.7.01(1) and (2) and 7.03(4) of the FMC Rules are referenced;
b)in relation to r.7.01(2) of the FMC Rules it is clear that the new cause of action contemplated is one that has arisen after the proceeding was started. This is clearly not the situation in this proceeding, and as such r.7.01(2) of the FMC Rules is not relevant to Ms Pitrau’s application to amend and cannot be relied on;
c)Ms Pitrau has also made reference to r.7.03 of the FMC Rules, particularly r.7.03(4), which allows the Court to grant leave to amend where the new cause of action arises out of substantially the same facts as the current cause of action;
d)as Ms Pitrau, a represented litigant, has made the strategic decision not to file evidence, it is inappropriate for Ms Pitrau’s solicitors to attempt to rely on an argument that the facts are substantially the same, as no evidence has been put to Barrick, or placed before the Court on these issues;
e)Ms Pitrau has not addressed the threshold issue in r.7.03(1) of the FMC Rules, which provides that r.7.03 applies if an application for leave to amend is made after the end of a relevant period of limitation current at the date when the proceeding was started;
f)Ms Pitrau has sought to rely on a number of factors in respect of the application for leave to amend, including those set out by in the Nerd Group.[66] While Ms Pitrau appears to rely principally on the question of ‘fairness’ and ‘prejudice’ to her, she has not led any evidence in this regard;
g)further, there is no evidence before the Court of any steps Ms Pitrau has taken to attempt to mitigate any potential prejudice or unfairness arising from any time limitations imposed by the FW Act. Barrick considers that Ms Pitrau could have properly addressed the issue of prejudice by taking steps to commence valid proceedings as soon as she was put on notice of the incurable defect in these proceedings. Any prejudice now said to arise has arisen as a result of Ms Pitrau’s own unreasonable delay in taking remedial action;
h)Ms Pitrau has also attempted to argue that Barrick would not suffer any prejudice as a result of leave to amend being granted. Barrick disputes this assertion. Despite the fact that Ms Pitrau has been on notice since 15 April 2011 regarding the defects in the application, she has failed to discontinue the action. Instead, Ms Pitrau has put Barrick through the time and cost of a hearing on this issue, despite the application being plainly defective, and facing significant, if not insurmountable, jurisdictional difficulties; and
i)Barrick considers that the proposed amendment sought by Ms Pitrau is futile and as such, leave to amend should not be granted.[67] Further, granting leave to amend as sought by Ms Pitrau would not be efficient or economical, as the jurisdictional issues would not be overcome and would necessitate a further application to the Court by Barrick.
Consideration
[66] Nerd Group IR at 437 per Lucev FM; FMCA at para.19 per Lucev FM.
[67] SZGTE at para.34 per Graham J.
Must not make
There is no dispute between the parties that the Court has no jurisdiction to determine the application because the application was one which, under s.723 of the FW Act, Ms Pitrau “must not make”. As the Federal Court has observed in Newman v East Yarra Friendly Society Pty Ltd Trading As My Chemist Pharmacy[68] “by reason of s 723 … [an applicant] is precluded from making an unlawful termination application under Pt 6-1 of the Act.”[69] Further, it is implicit in the making of the application in a case to amend by Ms Pitrau, and the argument on the application to amend, that the Court has no jurisdiction to determine the application because it is an application which could not be made under s.772 of the FW Act, by reason of s.723 of the FW Act, because Ms Pitrau could have made a general protections court application.[70]
[68] [2011] FCA 1262 (“East Yarra Friendly Society”).
[69] East Yarra Friendly Society at para.4 per North J.
[70] Mulgowie Fresh IR at 68 per Collier J; FCA at para.19 per Collier J; Freeman v Ambulance Victoria [2011] FCA 1141 at para.54 per Tracey J (“Ambulance Victoria”).
The fact that the application was one that Ms Pitrau “must not make” appears plainly obvious, but the use of that phrase warrants further examination in the circumstances of this case.[71]
[71] Much of what follows in paras.22-41 and 43 concerning the words and phrases “must”, “not”, “must not” and “must not make” also appear in this Court’s Reasons for Judgment in Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5 at paras.41-63 per Lucev FM.
What is meant by the use of the phrase “must not make” in s.723 of the FW Act?
The use of “must” is indicative of an imperative command, either positive or negative, depending upon the word or words which follow it in the relevant statutory provision. It expresses necessity in the sense of an obligation or requirement.[72]
[72] The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”).
In Posner v Collector for Inter-State Destitute Persons (Victoria),[73] one High Court Justice observed that:
“Section 56 of the Justices Act (W.A.) requires, with certain immaterial exceptions, that the summons must be served on the defendant personally. “Must” is a word of absolute obligation and occurs in a section which is concerned with a fundamental principle of justice. It is not merely directory. Compliance is essential to an effective hearing of the summons.”[74]
[73] (1946) 74 CLR 461 (“Posner”).
[74] Posner at 490 per Williams J.
In Kosovich v Mancini,[75] the South Australian Supreme Court was dealing with road transport legislation which provided that the mass of a vehicle “must be determined in accordance with the regulations”.[76] The South Australian Supreme Court observed as follows:
“It seems to me that “must be determined” imposes an obligation which cannot be regarded as directory only. I have looked both in the dictionary and in Maxwell. The appropriate meaning of “must” in the Shorter Oxford English Dictionary is:
“Expressing necessity: Am (is are) obliged or required to; have (has) to; it is necessary that (I, you, he, it, etc) should”. “In ordinary usage, ‘may’ is permissive and ‘must’ is imperative” (Maxwell on Interpretation of Statutes 12th ed. (1969) p.324),”[77]
and
“If the wish of Parliament had been to make the subsection directory it could easily have done so by using the word “may” instead of the word “must”.”[78]
[75] (1982) 31 SASR 272 (“Kosovich”).
[76] Kosovich at 275 per Millhouse J.
[77] Kosovich at 275 per Millhouse J.
[78] Kosovich at 276 per Millhouse J.
In Australian Fisheries Management Authority v PW Adams Pty Ltd,[79] the Full Court of the Federal Court was dealing with fisheries management legislation, and in particular a provision which provided that certain objectives “must be pursued by the Minister and the Authority in the administration of the Act, … and by the Authority in the performance of its functions”. Each of the five objectives was conjoined by the use of the word “and”. The Full Court of the Federal Court held that the use of the word “must”, and the linking of each of the five objectives with the word “and”, meant that each objective must be pursued by the Minister and by the Authority.[80]
[79] (1995) 61 FCR 314 (“Adams”).
[80] Adams at 332 per Sheppard J (with whom Tamberlin J at 334 and Lehane J at 336 agreed).
In dealing with migration legislation which required that applications “must” be lodged within a certain time limit, the Federal Court, having cited Posner and Kosovich as authority for the proposition that “must” is a word of absolute obligation, went on to observe that:
“[s]uch an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory.”[81]
[81] Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 391 per Merkel J.
In Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Limited & Ors,[82] this Court, having set out the passages from the authorities cited immediately above, observed that:
“The above authorities strongly indicate that the use of the word “must” in the phrase “must advise” imposes an obligation on the Court to exercise the required function, namely, to advise the parties to use the dispute resolution process, being mediation in this case.”[83]
[82] [2010] 244 FLR 335; [2010] FMCA 932 (“Bidding Buzz”).
[83] Bidding Buzz FLR at 347 per Lucev FM; FMCA at para.40 per Lucev FM.
The word “not” is an adverb of negation.[84]
[84] Shorter Oxford English Dictionary, Volume II, page 1415.
In Halwood Corporation Ltd v Roads Corporation,[85] the Victorian Supreme Court Court of Appeal observed that “must not” was a “blunt instrument” when used in a statute, and not always appropriate as a substitute for “shall not”,[86] and went on to say that:
“Even so, it may be useful to acknowledge that, whatever can be said of “must” as a preferred manner of designated and personal obligation, “must not” is by no means always logically interchangeable with “shall not”; and it is generally not so unless a personal prohibition is intended.”[87]
[85] [1998] 2 VR 439 (“Halwood Corporation”).
[86] Halwood Corporation at 445 per Tadgell JA.
[87] Halwood Corporation at 446 per Tadgell JA (emphasis added).
The words “must not” appear in s.32AA(1) of the FC Act, which provides that:
(1) Proceedings must not be instituted in the Court in respect of a matter if:
(a) the Federal Magistrates Court has jurisdiction in that matter; and
(b) proceedings in respect of an associated matter are pending in the Federal Magistrates Court.
In Boumelhemv Commonwealth Bank of Australia,[88] there were bankruptcy proceedings before this Court that had been adjourned pending the completion of related proceedings in the District Court of New South Wales. An application to the Federal Court sought a stay of the bankruptcy proceedings until an appeal from the judgment of the District Court of New South Wales was heard, and an order that the operation of any sequestration order made in bankruptcy proceedings be similarly stayed.[89] The Federal Court, having set out s.32AA(1) of the FC Act, observed that:
“The application to this Court therefore appears statute barred.”[90]
and
“As the application seems statute-barred and no argument was advanced to the contrary and as the orders sought were moot, the application was dismissed.”[91]
[88] [2008] FCA 1121 (“Boumelhem”).
[89] Boumelhem at paras.2 and 7 per Buchanan J.
[90] Boumelhem at para.9 per Buchanan J.
[91] Boumelhem at para.12 per Buchanan J.
In Carantinos v Magafas,[92] an order was sought from the Federal Court restraining a creditor from taking steps in this Court to obtain a sequestration order in circumstances where a creditor’s petition had earlier been presented in this Court.[93] In Carantinos the Federal Court said:
“8. It is plain for the reasons given above that the proceeding that Mr Carantinos has purportedly instituted in this Court is in respect of a matter in which the Federal Magistrates Court has jurisdiction. The proceeding in the Federal Magistrates Court in which Mr Carantinos wishes the respondent to be restrained by order of this Court from taking further steps is a proceeding that was initiated in that court by the presentation of the respondent’s creditor’s petition. It is beyond argument, in my view, that that proceeding is in respect of an “associated matter” within the meaning of s 32AA(1)(b). Subject to the provisions of s 32AA(2), Mr Carantinos’s application to this Court is a proceeding that s 32AA(1) provides must not be instituted.
9. The question therefore arises of whether this proceeding should be transferred to the Federal Magistrates Court. The application is in the form of an application for an anti-suit injunction in respect of a proceeding in the Federal Magistrates Court. It would be inappropriate for such an application to be made in the Federal Magistrates Court. Moreover, all of the factors on which Mr Carantinos wished to rely before this Court on seeking the anti-suit injunction can be raised by him in the Federal Magistrates Court in opposing the making of the sequestration order sought by the creditor’s petition (s 52(2)(b) of the Bankruptcy Act). In these circumstances it seems to me to be inappropriate to transfer the proceeding to the Federal Magistrates Court. The application will therefore be dismissed.”[94]
The application was dismissed, with indemnity costs awarded.[95]
[92] [2008] FCA 1107 (“Carantinos”).
[93] Carantinos at para.8 per Branson J.
[94] Carantinos at paras.8-9 per Branson J.
[95] Carantinos at para.11 per Branson J.
It is apparent from both Boumelhem and Carantinos that the Federal Court has interpreted the words “must not” in the phrase “proceedings must not be instituted” as imposing a statutory bar on the institution of other proceedings in the Federal Court where there are existing proceedings in this Court.
The interpretation adopted by the Federal Court of the words “must not” in s.32AA(1) of the FC Act accords with the natural meaning of that phrase. It is difficult to see why those words ought not be given similar meaning, and effect, in s.723 of the FW Act insofar as they purport to prohibit the making of an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.
In Attorney-General for the State of Victoria (at the relation of Black) & Ors v The Commonwealth of Australia & Ors,[96] the High Court of Australia was concerned with the validity of laws sought to be challenged by reference to s.116 of the Constitution, which provides that:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
[96] (1981) 146 CLR 559 (“Black”).
As was the case in Adelaide Company of Jehovah’s Witnesses Inc v The Commonwealth,[97] s.116 of the Constitution, particularly because of the words “shall not make”, was found in Black to be a section imposing an absolute prohibition on the Commonwealth Parliament legislating with respect to the matters which followed that phrase in s.116 of the Constitution.[98] How much stronger then is the effect of the “blunt instrument”[99] that is “must not make” in s.723 of the FW Act?
[97] (1943) 67 CLR 116 (“Jehovah’s Witnesses”).
[98] Black at 576-577 and 579-581 per Barwick CJ, 605 per Stephen J, 618 per Mason J and 621 per Murphy J; Jehovah’s Witnesses at 123 per Latham CJ and 156 per McTiernan J.
[99] Halwood Corporation at 445 per Tadgell JA.
In Ilardo v Rail Corporation of New South Wales (t/as RailCorp),[100] the Full Bench of FWA found that an application for unfair dismissal to FWA under s.729 of the FW Act was precluded where the applicant had previously made an application in relation to dismissal to the Transport Appeals Board under the Transport Appeals Board Act 1980 (NSW). The Full Bench of FWA found that:
“Mr Ilardo’s previous appeal to the TAB was an application made under the Transport Appeals Board Act 1980 (NSW). It was an “application or complaint under another law” being an application or complaint made under a law of a State or Territory (s 732 of the Act). Applying the rule in s 725, Mr Ilardo is barred from making an application of a kind referred to in s 729 (an unfair dismissal application) as s 732 applies.”[101]
[100] (2010) 197 IR 397; [2010] FWAFB 6473 (“Ilardo”).
[101] Ilardo IR at 402 per Hamberger SDP, Hamilton DP, Simpson C; FWAFB at para.23 per Hamberger SDP, Hamilton DP, Simpson C.
In Du v University of Ballarat,[102] a Full Bench of FWA was dealing with an appeal in respect of an unfair dismissal remedy application made by a Dr Du against the University of Ballarat.[103] The University of Ballarat had objected to the application on jurisdictional grounds asserting that it offended Subdivision B of Division 3 of Part 6 Item 1 of the FW Act.[104] The Full Bench of FWA observed that:
“That subdivision precludes multiple applications in respect of termination of employment except in certain circumstances.”[105]
[102] [2011] FWAFB 5225 (“Du”).
[103] Du at para.1 per Acton SDP, Hamilton DP and McKenna C.
[104] Du at para.2 per Acton SDP, Hamilton DP and McKenna C.
[105] Du at para.2 per Acton SDP, Hamilton DP and McKenna C.
Dr Du had made a complaint to the Victorian Equal Opportunity and Human Rights Commission[106] alleging race discrimination by the University of Ballarat.[107] The application for an unfair dismissal remedy by Dr Du was made under s.394 of the FW Act.[108] The Full Bench of FWA held that Dr Du’s complaint to the VEOHRC constituted a complaint covered by s.732 of the FW Act, because the complaint alleged that he had had to resign from his employment with the University of Ballarat due to race discrimination by representatives of that university, which complaint was not withdrawn by Dr Du or did not fail for want of jurisdiction.[109] The complaint made by Dr Du to VEOHRC alleging race discrimination covered a period from February 2009 until his eventual resignation at the end of August 2009.[110]
[106] “VEOHRC”.
[107] Du at para.7 per Acton SDP, Hamilton DP and McKenna C.
[108] Du at para.15 per Acton SDP, Hamilton DP and McKenna C.
[109] Du at para.16 per Acton SDP, Hamilton DP and McKenna C.
[110] Du at para.7 per Acton SDP, Hamilton DP and McKenna C.
In Du, the Full Bench of FWA, having considered ss.725 and 732 of the FW Act, and the FW Bill Explanatory Memorandum, concluded that:
“24. Accordingly, we consider Dr Du was precluded by the operation of the provisions of Subdivision B of Division 3 of Part 6-1 of the FW Act from making his unfair dismissal remedy application under s 394 of the FW Act on 23 December 2010. This is because he made a complaint to the VEOHRC on 3 June 2009 which, for the reasons we have already given, was a complaint within the meaning of s 732 of the FW Act which has not been withdrawn by him or failed for want of jurisdiction.
25 Dr Du's s 394 application in matter U2010/15460 is therefore dismissed.”[111]
[111] Du at paras.24-25 per Acton SDP, Hamilton DP and McKenna C.
In East Yarra Friendly Society, in circumstances relevantly identical to those in this case, the Federal Court observed that:
“2. The applicant's employment with the respondents was terminated on 17 May 2010. She alleges that her employment was terminated by reason of her pregnancy in contravention of s 772(1) of the Fair Work Australia Act 2009 (Cth) (the Act). On 18 June 2010, the applicant through her legal representatives applied to Fair Work Australia (FWA) under s 773 of the Act for FWA to deal with the dispute. This application was brought under Part 6 - 1 of the Act. A certificate was subsequently issued by FWA under s 777 to the effect that all attempts to resolve the dispute had been, or were likely to be, unsuccessful. In reliance on that certificate, the applicant filed an unlawful termination application against the respondents on 7 October 2010.
3 It is now common ground that the applicant, being a national system employee as defined in s 30C(1)(a) of the Act, was entitled to apply to FWA under s 365, obtain a certificate under s 369 and make a general protections court application under s 371.
4 In those circumstances, by reason of s 723, she is precluded from making an unlawful termination application under Part 6-1 of the Act.”[112]
[112] East Yarra Friendly Society at paras.2-4 per North J.
In the Court’s view there is no room for doubt about the proper meaning and application of s.723 of the FW Act. Section 723 of the FW Act imposes a personal prohibition[113] on a person making an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct. That meaning:
a)is plain on the face of the statute;
b)was intended by the Commonwealth Parliament, as confirmed by the extracts from the FW Bill Explanatory Memorandum set out above;[114] and
c)is confirmed by relevant case law.
[113] Halwood Corporation at 446 per Tadgell JA.
[114] See para.5 above.
In relation to
The requirement in s.723 of the FW Act that the unlawful termination application and the general protections court application be “in relation to conduct” and “in relation to the conduct” respectively, indicate that the conduct the subject of the general protections court application must be “the conduct” which is the subject of the “conduct” in relation to the unlawful termination application. In this case, no difficulty is caused by this issue for the conduct alleged in relation to the unlawful termination application by Ms Pitrau is the same conduct that Ms Pitrau intends be the subject of the amended application under the general protections court application if leave to amend is granted.
Conclusion – must not make
The unlawful termination application which was made under s.773 of the FW Act was therefore never an application which Ms Pitrau was able to make. She was personally prohibited from making that application.
In the Court’s view there can therefore be no application to amend under r.7.01 of the FW Act because no application was capable of being made, or can be said to have been made, either to FWA or to this Court.
Would an amendment be futile?
If the Court assumes that there were an application, initially to FWA under s.773 of the FW Act, and then to this Court under s.779 of the FW Act, which could be amended, as sought by Ms Pitrau, to be an application under s.352 of the FW Act, what would be the effect of such an amendment?
Section 371 of the FW Act provides as follows:
A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a)FWA has issued a certificate under section 369 in relation to the dispute; or
(b)the general protections court application includes an application for an interim injunction.
It is common ground that there is:
a)no Section 369 Certificate; and
b)no application for an interim injunction sought by Ms Pitrau.
It is well settled that a Section 369 Certificate is a jurisdictional prerequisite to a general protections court application being made.[115]
[115] East Yarra Friendly Society at para.5 per North J; Poole IR at 270 per O’Sullivan FM; FMCA at paras.24-25 per O’Sullivan FM; Active Tree Services at paras.2 and 33-35 per Coker FM; Cavar v Nursing Australia [2011] FMCA 929 at para.39 per Barnes FM (“Cavar”), citing Active Tree Services at para.33 above, where the Court said in Cavar that: “Pursuant to s.371 of the Fair Work Act the court only has jurisdiction in relation to a matter within s.365 to deal with the application that was conciliated before Fair Work Australia.” See also the cases on the similarly worded requirement for a Section 777 Certificate as a jurisdictional prerequisite to a valid unlawful termination application before the Court: Rentuza FLR at 237 per Lucev FM; FMCA at paras.21-23 per Lucev FM; Passeck at para.4 per Lucev FM.
The Court cannot issue a Section 369 Certificate. Section 369 of the FW Act provides as follows:
If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.
Under s.369 of the FW Act the issuance of a Section 369 Certificate is mandatory if FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. But it is only FWA that has power to issue a Section 369 Certificate. The issuance of a Section 369 Certificate marks the end of the conciliation or mediation functions of FWA, and is the prerequisite for the exercise of judicial power by this Court (or the Federal Court). This Court cannot issue a Section 369 Certificate for the same reasons it cannot issue the Section 777 Certificate.
In the circumstances:
a)there is not an efficacious proceeding on foot that the proposed amendment can enliven;[116] and
b)even if Ms Pitrau’s application were to be amended as sought, it would be an exercise in futility, for without a Section 369 Certificate the Court would have no jurisdiction to hear the amended application.[117]
[116] Baycorp at para.35 per Burnett FM.
[117] East Yarra Friendly Society at para.7 per North J, see also the authorities referred to in fn.115.
Without more the Court would, at this stage, conclude that:
a)the application which was made to FWA under s.773 of the FW Act, and the application under s.779 of the FW Act to this Court, were statute barred by reason of s.723 of the FW Act, and this Court is therefore without jurisdiction to determine the application to this Court, and the application is therefore not capable of amendment; and
b)even if the application was not statute barred, and the application were capable of being amended as sought by Ms Pitrau, the Court is without jurisdiction because there is no Section 369 Certificate, and:
i)only FWA can issue a Section 369 Certificate;
ii)a Section 777 Certificate cannot be amended by this Court to make it a Section 369 Certificate; and
iii)a Section 777 Certificate will not suffice as it is in relation to a different application and dispute. The submission by Ms Pitrau said to be based on Active Tree Services, that the dispute, whether under s.773 or s.352 of the FW Act, is but one dispute is wrong, for reasons set out above, and because Active Tree Services dealt solely with a general protections application and not an unlawful termination application.
It would follow that the application has no reasonable prospect of success, and that there ought to be an order for summary dismissal of the application under r.13.10(a) of the FMC Rules. What arguably stands between this conclusion, and its being made final by way of order, is the judgment of the Federal Court in Mulgowie Fresh.
The judgment in Mulgowie Fresh
In Mulgowie Fresh Mr Maher filed an application under s.773 of the FW Act alleging a contravention of s.772 of the FW Act. It was common ground that Mr Maher was a national systems employee within the meaning of s.14 of the FW Act. Mulgowie Fresh applied for the application to be summarily dismissed on the basis that it was commenced under the wrong legislative provisions. Ms Maher sought leave to amend the application. The Federal Court granted leave to amend the application to allege a contravention of s.351 of the FW Act. In so doing, the Federal Court referred to s.723 of the FW Act, but made no reference to the requirement for a Section 369 Certificate as a jurisdictional prerequisite to an application under s.351 of the FW Act.
Although the Federal Court in Mulgowie Fresh set out s.723 of the FW Act, and was aware that, and expressly found that, the applicant in that case was required to commence his application under the general protections provisions, it did not consider whether the application which it granted leave to amend was an application which was statute barred. Although the Federal Court found that Mr Maher “was not permitted to commence an action pursuant to s.772” of the FW Act,[118] the Federal Court did not consider the true nature of the prohibition or statutory bar in s.723 of the FW Act. Furthermore, the Federal Court in Mulgowie Fresh did not consider the statutory bar, and the want of jurisdiction which thereby arose, before granting leave to amend the application. The antecedent question of whether there was in fact an application within jurisdiction to amend was simply not raised by the Federal Court or the parties in Mulgowie Fresh. In East Yarra Friendly Society the Federal Court said that in Mulgowie Fresh there was:
“ … no discussion … directed to the issue … determinative of this case, namely whether any amendment would provide the jurisdictional basis for the application.”[119]
[118] Mulgowie Fresh IR at 68 per Collier J; FCA at para.19 per Collier J.
[119] East Yarra Friendly Society at para.8 per North J.
As Mulgowie Fresh was not directed to the issue determinative of this case, it is not necessary to follow it, either on the basis of stare decisis or comity.[120] For those reasons, the judgment in Mulgowie Fresh has been reached, with respect, without consideration of all relevant issues, and is therefore distinguishable because the factors set out above were not considered.
[120] Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586 at 592 per Weinberg, Jacobson and Lander JJ; [2005] FCAFC 41 at pras.36-39 per Weinberg, Jacobson and Lander JJ.
As there is no Section 369 Certificate in this matter there is no jurisdiction in this Court to hear the claim under s.352 of the FW Act which Ms Pitrau seeks to bring by way of the application to amend. A Section 777 Certificate will not suffice for this purpose, as it relates to a different application, that is, an unlawful termination application and not a general protections court application. The Court only has jurisdiction to deal with the application which was conciliated by FWA.[121]
[121] See ss.365, 369 and 371 of the FW Act in relation to general protections court applications and ss.772, 773, 777 and 779 of the FW Act in relation to unlawful termination applications. See also Active Tree Services at para.33 per Coker FM and Cavar at para.39 per Barnes FM.
Even if Mulgowie Fresh is followed, and leave were to be granted to Ms Pitrau to amend her application to make a claim under s.352 of the FW Act, this Court would not have jurisdiction to hear that claim for the reasons set out above. To grant leave to Ms Pitrau to amend would therefore be futile because the Court would not have jurisdiction to hear the application under s.352 of the FW Act without the Section 369 Certificate. In Mulgowie Fresh, the Federal Court did not consider this issue, that is, the consequences of a grant of leave to amend in circumstances where there was not a Section 369 Certificate as a jurisdictional prerequisite to a general protections court application.
In the Court’s view the judgment in Mulgowie Fresh, is, therefore distinguishable, and if not distinguishable, with very great respect, plainly wrong, and ought not to be followed by this Court.
Extension of time – general principles
The conclusions reached by the Court above, and summarised below,[122] make it unnecessary for the Court to embark upon a consideration of whether or not the general principles with respect to amendment of applications before this Court might have warranted an amendment to this application. The Court does, however, feel obliged to make some further observations. The difficulty caused in this matter is as a consequence of an error by Ms Pitrau’s legal advisors in making an application under the wrong section of the FW Act. Ordinarily, a litigant ought not suffer as a consequence of the error of their legal advisors (assuming jurisdiction or no statutory bar to the relevant application).[123] The error in this case was perpetuated by FWA, which has, wrongly, conciliated and issued the Section 777 Certificate in respect of a national system employee and a national system employer. There can be no doubt that Ms Pitrau has continued to seek to challenge the termination of her employment with Barrick by appealing to this Court. In the circumstances, where there has been representative and institutional error, and the termination of employment challenge has been maintained, it is not beyond the bounds of possibility or reason that Ms Pitrau might still make a general protections application to FWA, together with an extension of time application in respect of that application, and that those applications might be granted, notwithstanding the amount of time which has passed.[124]
[122] See para.63 below.
[123] See the discussion of representative error in School Bus Contractors at paras.42-67 per Lucev FM, and the various cases there cited.
[124] East Yarra Friendly Society at para.11 per North J.
Conclusion and order
The Court has concluded that:
a)the application which was made to FWA under s.773 of the FW Act, and the application under s.779 of the FW Act to this Court, were statute barred by reason of s.723 of the FW Act, and this Court is therefore without jurisdiction to determine the application to this Court; and
b)even if the application was not statute barred, and the application were capable of being amended as sought by Ms Pitrau, the Court is without jurisdiction because there is no Section 369 Certificate, and:
i)only FWA can issue a Section 369 Certificate;
ii)a Section 777 Certificate cannot be amended by this Court to make it a Section 369 Certificate; and
iii)a Section 777 Certificate will not suffice as it is in relation to a different application.
There will therefore be orders as follows:
a)that the respondent’s application for orders for summary dismissal filed 28 April 2011 be upheld;
b)that the applicant’s application in a case filed 4 July 2011 be dismissed; and
c)that the application be dismissed.
The Court will hear the parties as to costs, if any.
Further affidavit
The Court has been advised that after judgment in this matter was reserved, and in fact only days before these Reasons for Judgment have been delivered, Ms Pitrau sought to file, and the Registry accepted for filing, a further affidavit sworn by Ms Pitrau. There were no orders of the Court requiring or permitting Ms Pitrau to file such an affidavit. In preparation of these Reasons for Judgment, the Court has not read, nor has it had regard to, the affidavit concerned.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 23 March 2012
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